ArticuLaw Primo
LSPU-LAW STAR CLASS
Rule 76
Allowance or Disallowance of Will
Prepared by Decemar R. Escalante
What are the importance of Allowance of Wills?
- —Because the law expressly requires it;
- —Probate is a proceeding in rem;
- —The right of a person to dispose of his property by virtue of a will and may be rendered nugatory; and
- —Because absent legatees or devisees could be cheated of their inheritance thru the collusion of some of the heirs.
Two Kinds of Probate Proceedings
- —Inter – Vivos - During the lifetime of the testator; and
- —Upon his death.
Section 1. Who may petition for allowance of will.
—1. any creditor
—2. devisee or legatee named in the will
—3. person interested in the will
—4. testator himself
Sec 2. Contents of the Petition;
—- The jurisdictional facts;
—- The names, ages, and residences of the heirs, legatees, and devisees of the testator;
—- The probable value and the character of the property of the estate;
—- The name of the person for whom the letters are prayed;
—- If the will has not been delivered to the court, the name of the person having custody of it.
In Santos v. Castillo, and Salazar v. CFI of Laguna
—It has been the practice in some courts to permit the attachment of mere copy of the will to the application, without prejudice to producing the original thereof.
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—The annexing of the original will to the petition is not a jurisdictional requirement is clearly evident in Sec 1, Rule 76 of the ROC which allows the filing of a petition for probate by the person named therein regardless of whether or not he is in possession of the will, or the same is lost or destroyed.
WHAT IS DUE EXECUTION?
—1. the testator was of sound and disposing mind at the time the will was made
—2. no duress, fraud or undue influence
—3. strictly complied with the formalities
—4. will was genuine and not fraudulent
Section 3. Court appoints time for proving will. Notice thereof to be published
— When does court acquire jurisdiction over interested persons and res?
—Upon sending notices and publication for three consecutive weeks of the order setting the case for hearing.
If petition for probate is on testator’s own initiative during his lifetime, no proof of publication is necessary.
Section 4. Heirs, devisees, legatees and executors to be notified by mail or personally
- —By mail: 20 days before hearing
- —Personal notice: 10 days before hearing
Section 5. Proof of hearing. What is sufficient in absence of contest
—EVIDENCE in support of will:
—1. If not contested - court may grant allowance on the testimony of one of the subscribing witnesses and in a holographic will, the testimony of one witness who knows the handwriting and signature of the testator shall testify and in the absence thereof, by an expert witness.
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—2. If contested –
—in notarial wills, all subscribing witnesses and notary public must be presented.
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—in holographic wills – 3 witnesses who knows the handwriting of testator. If none is available, expert testimony may be resorted to.
Sec 6. Proof of lost of destroyed will
—As a General Rule: No will shall be proved as a lost or destroyed will.
—Exemption:
- The will has been duly executed by the testator;
- The will was in existence when the testator died, or if it was not, that it has been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge; and
- The provisions of the will are clearly established by at least two credible witnesses.
Section 7 and 8. Proof when witnesses do not reside in province; or dead or insane or do not reside in the Philippines.
—- The Court may, on motion, authorize a photographic copy of the will to be made and to be presented to the witness on his examination.
- —The Court may admit the testimony of other witnesses to prove the sanity of the testator; and the due execution of the will; and
- —It may admit proof of the handwriting of the testator and of the subscribing witnesses, or any of them.
Weight of Testimonial Evidence
— A will may be allowed even if some witnesses do not remember having attested to it, if other evidence satisfactorily show due execution. The failure of the witness to identify his signature does not bar to probate.
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—The statement of a competent attorney charged with responsibility of seeing to the proper execution of the instrument is entitled to greater weight that the testimony of a person casually called to participate in the act.
Section 9. Ground for Disallowance of Will
- —If not executed and attested as required by law;
—- If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution;
- —If it was executed under duress, or the influence of fear, or threats;
- —If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit; and
- —If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereof.
Section 9. The only issues to be resolved are:
1.Whether the instrument submitted is the decedent’s last will and testament:
2.Whether said will was executed in accordance with the formalities prescribed by law;
3.Whether the decedent had the necessary testamentary capacity at the time the will was executed: and
4.Whether the execution of the will and its signing were the voluntary acts of the decedent.
Section 10. Contestant to file ground of contest.
—Must state in writing his grounds for opposing its allowance
—Serve a copy thereof on the petitioner and other parties interested in the estate.
Section 11. Subscribing witnesses produced or accounted for where will contested
—All the subscribing witnesses, and the notary in case of wills executed, if present in the Philippines and not insane, must be produced and examined.
—If the witnesses are outside of the of the province where the will has been filed, their deposition must be taken.
—If any or all of them testify against the due execution of the will, or do not remember having attested to it, or otherwise of doubtful credibility, the will may allowed if the court satisfied from the testimony of other witnesses and from all evidence presented.
Section 12. Proof where testator petitions for the allowance of Holographic Will.
—If no contest is filed:
The affirmation made by the testator that the holographic will and the signature are his own handwriting, shall be sufficient evidence of the genuineness and due execution thereof.
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If contested:
The burden of disproving the genuineness and due execution shall be on the contestant.
At least three witnesses who know the handwriting of the testator; in the absence of any competent witness, expert testimony may be resorted.
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